Judge: John J. Kralik, Case: 19BBCV00929, Date: 2022-07-29 Tentative Ruling

Counsel who wish to submit on the tentative ruling may do so by emailing BURDeptB@lacourt.org






Case Number: 19BBCV00929    Hearing Date: July 29, 2022    Dept: NCB


Superior Court of California

County of Los Angeles

North Central District

Department B



woodhill ventures, llc dba big sugar bakeshop,







  Case No.:  19BBCV00929


  Hearing Date:  July 29, 2022


  [tentative] order RE:

motion for Summary adjudication



1.      Allegations of the Operative Complaint

Plaintiff Woodhill Ventures, LLC dba Big Sugar Bakeshop (“Plaintiff”) is a small business bakery.  Plaintiff alleges that Defendant Ben “Ben Baller” Yang (“Defendant”) made numerous profane, libelous, and slanderous comments on social media and his podcast accusing Plaintiff of putting Drugs/RX prescription pills on his son’s birthday cake.  

The operative complaint, filed October 17, 2019, alleges causes of action for: (1) libel; (2) slander; and (3) unfair business practices.

2.      Relevant Background

On February 7, 2020, the Court denied Defendant Ben Yang’s special motion to strike the complaint pursuant to CCP §425.16. 

Defendant appealed. 

On September 3, 2021, the Court of Appeal affirmed and awarded costs to Respondent/Plaintiff.  On January 7, 2022, the Court of Appeal issued its Remittitur.     

3.      Motion on Calendar

On May 11, 2022, Plaintiff filed a motion for summary adjudication on each of Defendant’s 22 Affirmative Defenses. 

On July 18, 2022, Defendant filed an opposition brief.

On July 22, 2022, Plaintiff filed a reply brief.


            With the reply brief, Plaintiff submitted evidentiary objections to the declarations of Ben Yang and Nicolette Yang. The Court rules as follows:


A.    Withdrawn Affirmative Defenses

Plaintiff moves for summary adjudication as to each of Defendant’s 22 affirmative defenses. 

In his opposition, Defendant withdraws Affirmative Defense Nos. 1-6, 8-9, 13-14, 16, 19, and 21-22.  (Opp. at p. 13.)  Defendant opposes the motion for summary adjudication and specifically argues that there are triable issues as to the Affirmative Defense Nos. 15 (Statements of Truth), 12 (Expressions of Opinion), 17 and 20 (Lack of Damages and Speculative Damages), 7 (Preventative/Corrective Opportunities), and 10 (Superseding Causation).  The Court notes that Defendant does not specifically discuss Nos. 11 (Failure to State Facts Sufficient for Defamation) or 18 (Materiality) in his opposition brief.

The Court has placed in bold the affirmative defenses that are still outstanding and which will be discussed in this order:

·         1. Failure to State a Claim

·         2. Unclean Hands

·         3. Mitigation of Damages

·         4. In Pari Dilecto

·         5. Equitable Estoppel

·         6. Offset

·         7. Preventative/Corrective Opportunities

·         8. Condition Precedent

·         9. Contributory Negligence

·         10. Superseding Causation

·         11. Failure to State Facts Sufficient for Defamation

·         12. Expression of Opinion

·         13. Matter of Public Concern

·         14. No Knowledge of Falsity

·         15. Statements of Truth

·         16. Privilege Statements

·         17. Lack of Damages

·         18. Materiality

·         19. Exemplary Damages would be Unconstitutional

·         20. Speculative Damages

·         21. Good Faith

·         22. Bona Fide Error

B.     Discussion of Merits

Plaintiff argues that this action arises from Defendant’s allegedly libelous and slanderous statements regarding Plaintiff’s bakery, Big Sugar Bakeshop.  Plaintiff argues that 5 particular statements were made on Defendant’s Twitter, Instagram, and podcast.[1]  The Court has italicized the portions of the statements that Plaintiff has placed at issue in the complaint. 

  1. Twitter: “This place called @BigSugarBakeshp in studio city CA super f*cked up on my sons bday cake. Instead of jelly beans they put RX prescription pills on my 7 year olds bday cake [emoji]. It’s a science themed party. … YOU ARE CANCELED!!!  (Pl.’s Fact 10; Compl., ¶37(a); Johnson Decl., Ex. H.)
  2. Instagram Story: “Anyone in their even high mind would know that you should NEVER EVER PUT DRUGS ON A 7 year old kids bday cake! Why? Why would @bigsugarbakeshop do something so stupid? Did you want the kids attending the party to think it’s ok to take pills or maybe make them even look like candy which is even worse?” (Pl.’s Fact 12; Compl., ¶37(b); Johnson Decl., Ex. G.)
  3. Twitter: “I still can’t believe how stupid the employees that work at that bakery are. How f*cking dumb could you be???? Where ever in life would it be okay to put drugs on a 7 year old kids bday cake and have them think its candy or something? I’m baffled.”  (Pl.’s Fact 11; Compl., ¶37(c); Johnson Decl., Ex. K.)
  4. Twitter: “The first sign up email states my son is 7…. My wife walked in 3 times. How old could he be if she’s 34? Looks in her late 20’s. He ain’t gonna be 17+”.  (Pl’s Fact 13; Compl., ¶37(f); Johnson Decl., Ex. N.) 
  5. August 26, 2019 Podcast: “This was a 7 year old kids party. They put prescription drugs. They put molly. They put percocets.” (Pl.’s Fact 14; Compl., ¶¶33(a), 45(a); Sosnick Decl., Ex. C [at 009].) 

The Court discusses the merits of the motion as to the remaining Affirmative Defenses.

1.      Affirmative Defense No. 15 – Statements of Truth

In Affirmative Defense No. 15, Defendant alleges: “The Complaint and each cause of action alleged against Defendant gives rise to no viable cause of action against Defendant as the statements were true.  (Answer, ¶18.) 

Plaintiff argues that there were no drugs on the birthday cake when it was delivered to Defendant’s home.  (Pl.’s Fact 17.)  According to Defendant’s discovery response to Plaintiff’s RFA No. 34 (“Admit that on August 24, 2019, at the time you made the social media posts regarding Big Sugar Bakeshop, you knew real drugs were not put on your son's birthday cake.”), Defendant raised objections but ultimately responded, “Admit.”  (Mot., Ex. 13 [RFA responses].  Similarly, at his deposition, Defendant testified that he said that Plaintiff put drugs on the cake, but that there were no actual drugs or prescription drugs on the cake delivered by Plaintiff and the pills only looked like Molly.  (Mot. Ex. 15 [Def.’s Deposition Testimony at pp. 95, 97-98].)  Plaintiff argues that Defendant then made his 5 offending statements on Twitter and Instagram on August 24, 2019 and on his podcast on August 26, 2019.  (Pl.’s Fact 18-22.)  Plaintiff also argues that the first sign-up email did not state that Defendant’s son was 7 years old.  (Pl.’s Fact 23.) 

In opposition, Defendant provides his own declaration wherein he states:

My initial social media post directly discussing the issue couldn’t have summed up my point any better that you should never put replica drugs on a child’s birthday cake, as children could mistake similarly looking “real” prescription drugs for edible candy, as the post included a side-by-side comparison of the example we provided, and of the cake we received, stating, “1st pic is the example. 2nd pic is what they made.” The images clearly show that the second cake has “REPLICA” drugs that look just like real drugs all over the cake. There was nothing to hide and nothing to mislead.

(B. Yang Decl., ¶13.)  Following the declaration statement, he includes a screenshot (Exhibit B) to provide a full context of the post:


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(Id., ¶13 at p.4.)  At the summary adjudication phase, courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.”  (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)  Here, taking Defendant’s statements in context with the photographs of the requested cake and the cake Defendant received, Defendant has raised a triable issue of material fact regarding the 1st statement he made about Plaintiff putting drugs (real or fake) on the cake. 

            With respect to the 2nd and 3rd statements, Defendant argues that his social media posts should be read in their full context, as opposed to the snippets provided by Plaintiff.  For example, in the 2nd statement, Defendant posted, “Did you want the kids attending the party to think it’s ok to take pills or maybe make them even look like candy which is even worse?”  (B. Yang Decl., ¶14, Ex. C [bold added].)  In his 3rd statement, Defendant posted “Where ever in life would it be okay to put drugs on a 7 year old kids bday cake and have them think its candy or something?  (Bold added.)  He states that he made his sentiments clear that Plaintiff placing “replica” pills on a child’s birthday cake is dangerous and that had he believed they were real, he would have called law enforcement.  (Id., ¶14.)  At the summary adjudication phase, the Court finds that these statements and his declaration sufficiently raise a triable issue of material fact regarding whether Defendant was making statements of fact, as well as statements of opinion. 

            Next, as to the 5th statement, Defendant argues that again he was not making statements that the pills were real, but rather that the decorations looked like real pills.  (Def.’s Fact 14.)  For the same reasons above, taking the full context of the parties’ exchanges, Defendant has raised a triable issue of material fact at the summary adjudication phase.

Finally, with respect to the 4th statement, the invoice of the subject cake was billed to Mrs. Yang on August 17, 2019 and included the following notations:

            9” Chocolate Cake with chocolate ganache filling $75.00

            Black fondant exterior                                              $35.00

            Green ganache drip                                                  $25.00

            Slime label                                                                  $15.00

            Fondant pills                                                              $15.00

            Numbers/Hexagon decor                                          $15.00

            Placement fee – for clear plastic cylinder               $20.00


(Mot., Ex. 2.)  In the opposing separate statement, Defendant does not state that Plaintiff’s Fact 23 is disputed or undisputed; rather, the box is blank.  (See Def.’s Sep. Statement at p.8; Def.’s Fact 23.)  In opposition, Defendant provides the declaration of Nicolette Yang.  Mrs. Yang’s inquiry email for the cake, dated August 11, 2019, she states:

            Full name: nicolette yang

            Email: …

            Telephone: …

            Pickup or Delivery: delivery

            Pickup location: Studio City

            Date and Time of Pickup: August 24th at 1pm

[¶] Event size: 30

Flavor cake and filling: chocolate ganache

Budget: $200

Theme of event: Science/Slime

(N. Yang Decl., ¶2, Ex. A.)  The Court notes that this email exchange did not include statements that Defendant’s son was 7 years old at the time.  At most, Mrs. Yang states that shortly before the birthday event, she visited Plaintiff’s store to drop off a cake prop and made clear that the case was for a 7-year old’s birthday party—but again, this was not the initial sign-up email.  (N. Yang Decl., ¶7.)  Thus, Plaintiff has upheld its burden and Defendant has failed to raise triable issue of material fact as to the 4th statement.  However, “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”  (CCP § 437c(f)(1).)

            Regardless of whether the affirmative defense of statement of truth (and/or opinion) is stricken, Plaintiff would still need to prove falsity of each statement it decides to place in issue in order to establish that defamation occurred.  (See Wong v. Tai Jing (2010) 189 Cal.App.4th 1354, 1369 [stating that the elements of a defamation claim are (1) publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or cause special damage].) 

            For these reasons, the motion for summary adjudication on Affirmative Defense No. 15 is denied.

2.      Affirmative Defense No. 12 – Expression of Opinion

In Affirmative Defense No. 12, Defendant alleges: “The Complaint does not state facts sufficient to constitute a cause of action against Defendant in that the statements alleged to be defamatory are expressions of opinion.”  (Answer, ¶15.) 

Plaintiffs argue that Defendant’s statements are assertions of fact and were not opinions because Defendant falsely claimed that Plaintiff put real drugs on the cake.  In opposition, Defendant argues that “no reasonable reader or listen of Mr. Yang’s statements would perceive it to be anything other than a figurative, hyperbolic expression.”  (Opp. at p.10.)

Plaintiff relies in part on the Court’s prior ruling on Defendant’s special motion to strike.  However, according to CCP § 425.16(b)(3): “If the court determines that the plaintiff has established a probability that he or she will prevail on the claim, neither that determination nor the fact of that determination shall be admissible in evidence at any later stage of the case, or in any subsequent action, and no burden of proof or degree of proof otherwise applicable shall be affected by that determination in any later stage of the case or in any subsequent proceeding.”  Thus, the Court’s prior findings on the prior special motion to strike, which included a different legal standard and evidence, will not be a grounds for granting this motion for summary adjudication.

Similar to the discussion above regarding Affirmative Defense No. 15, the Court finds that there are triable issues of material fact regarding the 1st, 2nd, 3rd, and 5th statements.  While the 4th statement about the first sign-up email stating that Defendant’s son was 7-years old at the time is not true or an expression of opinion, the Court will not grant summary adjudication as to only a part of an affirmative defense.

Accordingly, the motion for summary adjudication on Affirmative Defense No. 12 is denied.

3.      Affirmative Defense Nos. 17 and 20 – Lack of Damages and Speculative Damages

In Affirmative Defense No. 17, Defendant alleges: “No act or omission on the part of Defendant either caused or contributed to whatever injury (if any) the Plaintiff may have sustained.”  (Answer, ¶20.)  In Affirmative Defense No. 20, Defendant alleges: “Plaintiff is not entitled to any recovery from Defendant because the alleged damages, if any, are speculative.”  (Id., ¶23.) 

First, Plaintiff argues that these affirmative defenses are not applicable because the statements are defamatory per se.  In opposition, Defendant argues that Plaintiff’s complaint fails to make clear whether the claims are for slander and libel per se or are for slander and libel per quod.  However, the complaint alleges that Defendant’s “statements constitute liber per se” and were “libelous on its face as it was obviously hurtful to Big Sugar’s reputation and exposed Big Sugar to hatred, contempt, and ridicule.”  (Compl., ¶¶4, 40.)  Plaintiff also alleges that the slanderous statements directly injured Plaintiff’s business as each statement imputed a business practice that had a natural tendency to lose profits, such as by putting drugs on a child’s cake.  (Id., ¶46.)  Further, as stated by the Court of Appeal in Burrill v. Nair (2013) 217 Cal.App.4th 357 (disapproved on other grounds in Baral v. Schnitt (2016) 1 Cal.5th 376): 

Where a libelous statement “is defamatory on its face, it is said to be libelous per se, and actionable without proof of special damage. But if it is defamation per quod, i.e., if the defamatory character is not apparent on its face and requires an explanation of the surrounding circumstances (the ‘innuendo’) to make its meaning clear, it is not libelous per se, and is not actionable without pleading and proof of special damages.” (5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 541, p. 794; see Civ.Code, § 45a.) Similarly, certain slanderous statements are considered slanderous per se, and actionable without proof of special damage. However, the slander statute expressly limits slander per se to four categories of defamatory statements, “including statements (1) charging the commission of crime, or (2) tending directly to injure a plaintiff in respect to the plaintiff's [profession, trade, or] business by imputing something with reference to the plaintiff's [profession, trade, or] business that has a natural tendency to lessen its profits.” (Mann, supra, 120 Cal.App.4th at pp. 106–107, 15 Cal.Rptr.3d 215; see Civ.Code, § 46.) And while libel per se is not so limited, courts have held the foregoing categories of defamatory statements to also constitute libel per se.

(Burill, supra, 217 Cal.App.4th at 382-383.) 

Here, the defamatory character of the statements is apparent on its face and does not require an explanation of the surrounding circumstances as Defendant’s statements were pointed towards Plaintiff’s business, their cake decorations, and their use of drugs (or replica drugs) on the subject cake.  As such, Plaintiff has sufficiently apprised Defendant that it is pursuing claims of libel per se and slander per se, as opposed to libel/slander per quod.  As such, Plaintiff need not plead or prove special damages. 

Next, Defendant argues that these affirmative defenses are proper against Plaintiff’s 3rd cause of action for unfair business competition because while damages are not available for an unfair competition law claim, Plaintiff may be pursuing injunctive “restitutionary” relief.  (Opp. at pp. 11-12.)  Thus, Defendant argues that if Plaintiff is seeking restitution of money, then Plaintiff would need to prove this cause of action with actual evidence. 

In the 3rd cause of action for unfair business practices, Plaintiff alleges that Defendant used unfair business practices to make false statements to incite his social media followers to harass, threaten, or damage people/entities to generate a social media buzz for his podcast.  (Compl., ¶56.)  Plaintiff alleges that it has been harmed in the form of lost business opportunities, revenues, and profits, and thus it seeks restitution and attorney’s fees and costs, as well as injunctive relief.  (Id., ¶¶58-59.)  In reply, Plaintiff argues that restitution is not damages, such that actual damages are not a necessary element to a UCL claim.  (See Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1144 [stating that a UCL action is equitable in nature such that damages cannot be recovered and that relief is limited to injunctive relief and restitution].) 

If Plaintiff was seeking purely to prevail on its defamation claims and for nominal damages, then Plaintiff would not need to prove special damages.  However, by way of its complaint, Plaintiff is seeking more than nominal damages – it is seeking damages with respect to its business, including loss of business, loss of business opportunities/revenues/profits, money expended due to Defendant’s statements, restitution, and attorney’s fees and costs.  (Compl., ¶¶42, 50, 58-59.)  Since Plaintiff is seeking general damages and restitution, it will need to prove the amount of damages that it suffered.  Further, by bringing these defenses, Defendant is essentially reasserting its right to defend against and question the amount of damages that Plaintiff is or will be claiming.  (The Court notes that even if Affirmative Defense Nos. 17 and 20 were stricken, Defendant would still have the right to raises defenses or dispute damages.) 

Thus, while Plaintiff argues that it need not prove special damages in connection with its defamation per se causes of action, Plaintiff’s motion somewhat misses the mark as Plaintiff is seeking more than just nominal damages.  Defendant’s Affirmative Defenses are not directed only to the issue of special damages, but rather to the damages that Plaintiff claims to have sustained as a whole, which includes loss of business, etc.  As such, the Court does not find that Plaintiff has upheld its burden on these issues.

As such, the motion is granted to Affirmative Defense Nos. 17 and 20.

4.      Affirmative Defense Nos. 7, 10, 11, and 18

a.      Affirmative Defense No. 7 - Preventative/Corrective Opportunities

With respect to Affirmative Defense No. 7 – Preventative/Corrective Opportunities, Plaintiff argues that this is not an affirmative defense and, even if it were, Plaintiff had asked Defendant to correct or retract his false statements.  (Mot. at p.22.)  Plaintiff argues that no material facts are necessary to adjudicate this issue because it is not an affirmative defense as a matter of law.  (Mot. Sep. Statement at p.4.)  In opposition, Defendant argues that Plaintiff deviated from Mrs. Yang’s proposed design, had not given the Yangs the opportunity to approve the deviation, and Plaintiff could have taken protective measures to avoid Defendant from making public complaints about the cake by providing the Yangs the proposed designs for approval.  (Opp. at p.12.) 

The affirmative defense of “preventative or corrective opportunities” is ordinarily pleaded in the context of employer-employee action where an employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with authority over the employee.  (See Burlington Industries, Inc. v. Ellerth (1998) 524 U.S. 742, 765; Faragher v. City of Boca Raton (1998) 524 U.S. 775.)[2]  As such, the Court declines to extend this affirmative defense in the context of this defamation case involving a bakery and its client regarding the decorations of a cake.  The motion for summary adjudication on Affirmative Defense No. 7 is granted.

b.      Affirmative Defense No. 10 - Superseding Causation

In Affirmative Defense No. 10, Defendant alleges: “If Plaintiff sustained any injuries or incurred any damages, which Defendant deny [sic], such alleged injuries and damages were product of, or were exacerbated by, independent superseding events, factors, occurrences, or conditions over which Defendant had no control and for which Defendant is not legally responsible or liable.”  (Answer, ¶13.) 

Plaintiff argues that Affirmative Defense No. 10 is not applicable because Defendant’s statements were defamatory per se, the damages caused are presumed, and thus the defense does not apply.  (Mot. at p.23.)  In opposition, Defendant argues that the statements were later retweeted and shared by others who failed to provide the entire context of the full visual statement of Defendant’s original statement, such that Defendant’s original statements were misconstrued by others.  (Opp. at p.12.) 

However, as indicated above with respect to damages, the issue of independent causes of damages cannot be fully understood or adjudicated without a full understanding of the damages that are claimed by Plaintiff. Given the broad description of the damages in the complaint, there well could be independent causes that cannot be determined until the damages are specified. The motion contains no such specification or limitation. For example, if there is a claim for lost profits during the pandemic, perhaps the pandemic is a cause of some of the losses that must be evaluated. Thus merely establishing that certain statements constitute slander per se (see Civil Code, § 46) does not resolve the issue.

The motion for summary adjudication on Affirmative Defense No. 10 is denied.

c.       Affirmative Defense No. 11 - Failure to State Facts Sufficient for Defamation

Plaintiff argues that Affirmative Defense Nos. 1 (withdrawn by Defendant) and 11 are not applicable because “failure to state a claim” is not an affirmative defense.  (Mot. at p.20.)  The Court notes that Defendant does not address this affirmative defense in its opposition, but has already withdrawn Affirmative Defense No. 1 re Failure to State a Claim. 

The failure to state a claim is not an affirmative defense that must be pled or waived.  (See CCP § 480.80 [stating that objections on the basis that the court lacks jurisdiction or the pleading does not state sufficient facts is not waived by failure of the party to answer or demur on these grounds]; Rutter Guide, Cal. Prac. Guide Civ. Pro. Before Trial (June 2022 Update) Ch. 6-C, § 6:430 [“In addition to denials, the answer should contain whatever affirmative defenses or objections to the complaint that defendant may have, and that would otherwise not be in issue under a simple denial. Such defenses or objections are referred to as ‘new matter.’”]. See also J & J Sports Productions, Inc. v. Mendoza-Govan (N.D. Cal., Apr. 25, 2011) 2011 WL 1544886, at *5 [“Failure to state a claim is not a proper affirmative defense but, rather, asserts a defect in [the plaintiff's] prima facie case.”].) 

As such, the motion for summary adjudication as to Affirmative Defense No. 11 is granted. 

d.      Affirmative Defense No. 18 – Materiality

In Affirmative Defense No. 18, Defendant alleges: “Plaintiff is not entitled to any recovery from Defendant because any alleged false or misleading statements or omissions attributable to Defendant, which Defendant denies, were not material.”  (Answer, ¶21.)

Plaintiff argues that this affirmative defense fails because Defendant’s statements that Plaintiff put drugs on his son’s birthday cake are material and are defamatory per se.  (Di Giorgio Fruit Corp. v. American Federation of Labor and Congress of Indus. Organizations (1963) 215 Cal.App.2d 560, 571 [“[W]hen a corporation … charges that a publication respecting it is libelous per se, it is essential that it should reasonably and naturally appear from the publication complained of that it was of such a nature as to deprive [it] of the patronage or trade it enjoyed in a business way, or to render it so odious and contemptible in the estimation of those with whom it did have or might reasonably expect to have business dealings or connections as to injuriously affect its business. ...”].) 

The Court notes that Defendant has not discussed the materiality affirmative defense in his opposition brief.  It should further be noted that Defendant has not disputed Plaintiff’s Fact Nos. 44-48 regarding this defense.  (See Pl.’s Facts 44-48; Def.’s SS at p.14 [skipping Facts 44-63].)  As such, it appears that Defendant is conceding that this affirmative defense fails.  (CCP § 437c(b)(3) [“Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court's discretion, for granting the motion.”].) 

Thus, the motion for summary adjudication as to Affirmative Defense No. 18 is granted.


            Plaintiff’s motion for summary adjudication as to Defendant’s Affirmative Defense Nos. 1-6, 8-9, 13-14, 16, 19, and 21-22 is granted as Defendant’s opposition states that he is withdrawing these affirmative defenses.

            Plaintiff’s motion for summary adjudication as to Defendant’s Affirmative Defense Nos. 7, 11, 17, 18, and 20 is granted.

            Plaintiff’s motion for summary adjudication as to Defendant’s Affirmative Defense Nos. 10, 12, and 15 is denied.

            Plaintiff shall provide notice of this order.



[1] In the complaint, Plaintiff alleged there were 9 statements at issue, but in the moving papers, Plaintiff states that if it prevails on this motion, it will only pursue slander and libel claims as to these 5 statements at issue in this motion, and not the remaining 4 statements that were made in paragraphs 37(d), 37(e), 33(d)/45(b), and 33(b)/45(c) in the complaint. (Mot. at p.10, fn.1.) 

[2] The Court of Appeal in Comstock v. Aber (2012) 212 Cal.App.4th 931, 944 stated: “The defense is that set forth in Faragher v. City of Boca Raton (1998) 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662, which held that in an action by an employee, the employer can assert as an affirmative defense that the employee unreasonably failed to take advantage of preventative or corrective opportunities provided by the employer.” 

Based on the Court’s review of the case law, the context of applying this affirmative defense is in the employer-employee setting. (See State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1038–1039 [FEHA action] [“When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence.... The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”] [citing Burlington Industries, Inc. v. Ellerth (1998) 524 U.S. 742]; City of Petaluma v. Superior Court (2016) 248 Cal.App.4th 1023, 1030 [FEHA action].)